United States v. Garcia-Alaniz ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40073
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONSO ROLANDO GARCIA-ALANIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-98-CR-556-1
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December 15, 1999
Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Alfonso
Rolando Garcia-Alaniz has moved for leave to withdraw and has
filed a brief as required by Anders v. California, 386 U.S. 738,
744 (1967). Garcia has filed a response to the motion,
contending that the illegal-reentry statutes violate the Equal
Protection Clause because drug possession is considered an
underlying crime for recidivism purposes for illegal reentry but
is not for other offenses. Garcia also maintains that he
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-40073
-2-
received ineffective assistance of counsel because his attorney
failed to file objections to the presentence investigation report
(PSR) and that he was entitled to various downward departures.
Because Garcia pleaded guilty to this offense, he has waived all
nonjurisdictional challenges to his conviction. Barrientos v.
United States, 668 F.2d 838, 842-43 (5th Cir. 1982). The record
has not been adequately developed to consider Garcia’s
ineffective-assistance claim on direct appeal. See United States
v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987). Garcia’s challenge
to the district court’s refusal to depart downward is
unreviewable on appeal because there is no indication that the
district court believed it did not have the authority to do so.
See United States v. Burleson, 22 F.3d 93, 95 (5th Cir. 1994).
Garcia’s other requests for downward departures either do not
give a basis for granting such a departure or were awarded to
Garcia through a three-level reduction for acceptance of
responsibility.
Our independent review of the brief and the record discloses
no nonfrivolous appellate issue. Accordingly, the motion for
leave to withdraw is GRANTED, counsel is excused from further
responsibilities herein, and the APPEAL IS DISMISSED. See 5TH
CIR. R. 42.2.